If there is one thing that I can say with any certainty on this blog is that the world is constantly changing. Just when it feels like things are beginning to slow down for you or your family, in the blink of an eye a circumstance or other aspect of your life can change. Whatever it may be, we humans have learned to become flexible with major changes in our lives. When it comes to making changes as a result of a divorce, we see that you may have needed to re-adjust to life as a single adult. Part of that adjustment period is the ability to succeed in life with the divorce orders you were awarded in the divorce itself.
The orders that you negotiated for or were handed down from the judge in the divorce are the key to understanding what to make of your life post-divorce. For many people, those orders will be ok for years after the divorce. If these orders suit you and your family well then you do not need to give them a second thought. You can adjust your life to live within the confines of those orders and move on with the rest of your life to better account for whatever life throws at you after getting a divorce.
On the other hand, change is inevitable, and you may find yourself in a position where you are needing to change your court orders to match up with the circumstances that are now your reality. For you to be able to feel good about your life you may want to update your court orders to reflect the life of you and your children. What was true a decade ago may no longer be true as far as what suited you all best. Now you may find yourself in a position where you need to seriously look at your life and reestablish what is best for you and especially what is best for your children.
That is what we are going to discuss in today’s blog post from the Law Office of Bryan Fagan. I would like to talk with you all about the process for modifying a final decree of divorce here in Texas. The answer to the question of whether it is possible to modify a divorce decree is, yes, you can do that. However, the devil is in the details, and you need to be aware of the limitations, process, and structure of how you can best go about making those changes.
We are going to discuss how to manage this type of modification if that is something you want to pursue. A modification of a divorce decree is not the same thing as filing a second divorce. There are different elements to the case and different considerations that you must make to be successful in this type of matter. It does not make sense to file for a modification and to hope that you can win. Rather, if you are going to spend the time and money to file for a modification you would want to make sure that all signs point to you winning the case.
With that in mind, there is no greater advantage that you can acquire for yourself in a modification case than to have an experienced attorney assisting you, walking with you, and advocating for you and your family. Even if you didn't have an attorney in your divorce there are distinct advantages in a modification case that you will gain over a person who files for a similar modification but does not have an attorney by their side. At this level, you want every advantage you can gain. Hiring an attorney is a short-term investment into your long-term future and to your future relationship between you and your children if you are a parent.
If you have any questions about the material contained in this blog post, you can contact the Law Office of Bryan Fagan. We have three Houston area locations where we would be honored to host you for a free-of-charge consultation. Or, if you would prefer a virtual meeting with an attorney, we can schedule you for a video appointment. Finally, the phone works for us, too. A quick phone call on your lunch break or on the way home from work can go a long way toward helping you gain some insight and perspective on a difficult family law situation that you may be facing. Or you may be interested in learning more about the possibility of filing a modification based on your divorce from a few years ago.
No matter where you are concerning your family law-related matter, the attorneys with the Law Office of Bryan Fagan want to be able to meet you where you are and assist you in moving forward now or in the future with a modification, child custody, divorce or any other sort of family law case. We focus our practice on family law because that is where we believe we can make the largest possible impact in our community in a meaningful way. To learn more about our practice and what can offer you as a client please contact us today. A free-of-charge consultation is just a phone call away.
Modifying a divorce decree- what’s going on in your family matters
As we alluded to at the beginning of today's blog post, it is no secret that your life is probably different now than it was a few years ago when you went through a divorce. For some families, a significant change in circumstances may have happened immediately after the divorce ended. Or your family may have remained virtually unchanged for years after your divorce until something happened that changed all that. No matter what circumstance looks more like what you are going through we want you to understand that there are some characteristics that you need to be aware of before moving forward with a modification.
When it comes to modifications after a divorce most of the time the requested modification has to do with minor children. If that is the case your chances of something changing from the time of your divorce to now increase dramatically. The reason being is that children grow up and see parts of their lives shift and evolve more so than adults. Adults tend to be in a more consistent place than a child. If your child was 5 when you got divorced but is 15 now, then odds are several things are different about him or her compared to back in the day when you got your divorce. We would need to examine the reason why you think a modification of your divorce decree is necessary for connection with your children.
The rule for a modification is that there must have been a material and substantial change in circumstance that has developed which would otherwise lead to your prior court order not being workable. This is important because the material and substantial change are more significant than just any change that you could envision. No doubt- there is probably a small change that has occurred in your life within the week that your divorce decree was issued. However, small changes in your circumstantial changes are not what your modification should be based on. Rather, we need to see substantial changes in a circumstance that materially impacts the course of our lives as a family. That material change in circumstances could have occurred in your life, your ex-spouse's life, or in the life of one of your children.
You would allege the material and substantial change in circumstances in an affidavit to the judge. An affidavit is a sworn statement under oath. You complete the affidavit laying out your position as to what material and substantial change are, and how it has impacted your family and then you would file that along with your petition to modify your divorce decree. The court that issued your divorce decree would review your affidavit to determine whether there is a material and substantial change as you allege. Assuming that there is, your modification would be accepted, and you would then have to serve your ex-spouse with notice of the lawsuit.
Service most likely means personal service to your ex-spouse. Hiring a private process server or law enforcement officer to facilitate this step is how most people in your position would choose to proceed. Once the process server successfully serves your ex-spouse proof of the service would be filed with the court and your ex-spouse would respond with an Answer. The rest of the case would develop according to how the circumstances dictate. Meaning: you all would probably be going to mediation as a next step.
Mediation in a modification case: can you make a deal?
One of the most important parts of any family law case is the opportunity to attend mediation. Mediation involves formal settlement negotiations with a neutral, third-party mediator. Often the mediator is a practicing family law attorney who also works in the field of mediation. When you plan to attend mediation, the goal is to conclude the case with a settlement negotiation rather than having to go to a contested hearing. This allows you and your ex-spouse to control the proceedings. This is usually a better set-up for success as opposed to having a family court judge issuing rulings based on their limited interactions with your family. Even if you and your co-parent are not seeing eye to eye on much of anything now you all still know your family circumstances better than a family court judge.
When you attend mediation, it is especially useful for you to have an idea of what you want to get out of the case. Not in a general sense but with the specific plans that you have for yourself and your family after the case is done. Being intentional with goal setting and how you negotiate is critical to your success. We underestimate the extent to which an eye for detail and a specific plan can make up for a lot of other deficiencies in a case. Focusing on what you need to do to position yourself well for mediation is important as well. Sitting down with your attorney to develop a strategy, discuss your goals and talk about how to make counter proposals and other settlement offers is just as important as planning for a trial.
One of the parts of a modification case is to decide whether mediation even makes sense given your goals and circumstances. If you are pursuing a modification of your child custody schedule, then mediation would seem to be a productive use of your time. Many times, your ex-spouse can talk through different options that you could pursue and decide to approach the case from a different perspective than you had intended to. There can be a middle ground in a modification case just like there likely was a middle ground in your divorce. It is just a matter of finding that middle ground with your ex-spouse and being open-minded to think about your options and different courses of action that you could pursue.
On the other hand, you and your ex-spouse may be in a situation where a settlement is unlikely or not possible. For example, let's assume that you are asking for a geographic restriction to be lifted from your court orders to allow you to take a new job in a different city that is beyond the geographic area where your children can now reside. This is a substantial modification request given that a geographic restriction imposes significant limitations on where a child can live. Therefore, if you are the primary conservator of those children and are asking to have the geographic restriction lifted that could potentially put your Co-parent in a position where he would need to move, as well.
Your desire to have the geographic restriction lifted has everything to do with a new job and new opportunities in a different place. Either you can have that geographic restriction lifted and be able to move where you would like to take the new job, or the geographic restriction will not be able to be lifted. This is what I mean by there not being very much middle ground in this case. It is not as if you can have half of the geographic restriction lifted and leave the other half in place. In a situation like this, you would very likely be unable to mediate your way out of the situation. The other consideration would be if you would be willing to change your goals during the case and instead focus your attention on a different part of your final decree of divorce.
Attending a modification hearing
if you are unable to settle your modification case in mediation then you and your ex-spouse would need to attend a modification hearing in court before the judge. In this hearing, you would collect evidence and with your attorney would present your case to the judge as to why your requested modifications should be granted. Even though this is commonly referred to as a hearing it is a trial in every sense of the word. Being able to offer evidence and have admitted into the record documents and other physical evidence is difficult. For that reason, we recommend that you have an experienced family law attorney walking with you during the case. To go all the way to a hearing and not be able to express yourself fully and present the best care possible would be a major disappointment, to say the least.
A judge would consider all the evidence presented after a hearing. The judge would need to consider whether a material and substantial change have occurred in the circumstances of your family sufficient to justify the modification that you are requesting. The physical, emotional, and mental well-being of your child would need to be considered along with the future of your relationship with your child as well as that of your ex-spouse.
These are only a few of the considerations that the judge must think about when it comes to a material and substantial change. Next, even if the court finds that a material and substantial change has occurred it would still need to determine that the requested relief would be in the best interests of your child. To effectively navigate these choppy waters in a complex modification case you need to be prepared and resilient. Having an experienced family law attorney by your side can be a huge help to any family going through a complex modification.
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